Do Porn Companies "Blackmail" Illegal Downloaders?

Jennifer Barker didn't recognize the number rattling her cell phone one morning in May. But the soft-spoken blonde answered anyway. It was a decision the Louisville, Kentucky resident instantly regretted.

The unknown caller claimed to represent a law firm seeking to settle a civil complaint against Barker. The middle-aged hospital employee had violated federal copyright laws, the caller said. The potential punishment: $150,000 in damages.

What had she done wrong? The caller claimed she had illegally downloaded 12 pornographic movies with names like Blonde Ambition, Heavenly Brunettes, and Ménage à Trois. But if she were willing to pay a few thousands dollars, the matter would disappear. "At first I thought they had the wrong number, and then I thought it was a scam," Barker says, insisting she never downloaded anything of the sort. "[But] they would not quit calling."

Barker isn't the first person porn companies have chased down for allegedly infringing on copyrights. Over the past two years, thousands of people have paid tens of millions of dollars to keep their names out of lawsuits and out of public view. Some call it blackmail. Barker's lawyer, Kenneth Henry, terms it "a shakedown by porn companies." But Miami's Keith Lipscomb, a 38-year-old Brickell attorney who has led the charge nationally, calls it "the only way to stop Internet piracy."

Indeed, South Florida plays a unique role in this dirty international dragnet. For the past 15 months, porn firms have been using an archaic Sunshine State legal maneuver called a "pure bill of discovery" to obtain the names, addresses, and phone numbers of illegal downloaders across the nation. The law traces back to 15th-century England, when barristers ambushed one another with evidence in court. Bills of discovery were a step toward order and transparency. The Florida Supreme Court upheld the local version of this measure in 1882, but it fell into disuse because of the modern practice of publicly sharing subpoenas, depositions, and evidence.

Lipscomb claims to be the first to employ the obscure law to go after illegal downloaders. The handsome Cleveland native graduated from Cornell Law School in 2000 and moved to Miami. Seven years later, he opened his own firm, devoted to intellectual property litigation. In 2010, California porn mogul Patrick Collins called Lipscomb and asked for ideas on stopping Internet users from stealing his movies.

The young attorney had learned about pure bills of discovery back in law school. But while doing research for Collins, he realized Florida's laws were particularly lax. Almost all other states ban the bills in copyright cases. But Florida allows them — and this provided the loophole he needed to force Internet providers to cough up the identities of thousands of previously anonymous downloaders.

This past January 17, Lipscomb filed a pure bill of discovery in Miami-Dade County court on behalf of Collins, California porn studio Malibu Media, and three other porn companies. By monitoring person-to-person (P2P) file-sharing websites, the porn companies had identified 347 computers that had illegally downloaded their movies. Lipscomb's suit demanded the names.

Barker's Internet provider quickly revealed her name and number. Malibu began calling her in May. She told the company she hadn't downloaded anything, let alone Angel Afternoon Delight. But when she stopped answering her cell phone, the porn firm started calling her office and leaving messages. Once, the company even spoke to her boss. "They have no right to harass and embarrass people to try to get money from them," Barker says.

"It's pretty much the definition of blackmail," says Sasha Sampaio, a Miami attorney who defends clients caught in allegations of copyright violations. "These porn companies say, 'If you don't pay me, I'm going to say this unsavory thing about you in federal court.'" Sampaio says her clients aren't the horny band of young men you might assume. "They are women and men, young and old. They are everyone from teachers to students, military, clergy, and volunteers."

And they are often innocent. Weakly protected Wi-Fi signals and shared computers make assigning blame for illegal downloading almost impossible, Sampaio points out. "Lots of people come to me and say, 'What the hell? I didn't do anything!'"

That's Barker's story too. "Jennifer did not download any movies. Jennifer cannot be held liable for something that she didn't do, period," says Henry, her lawyer. "The burden is on Mr. Lipscomb and his folks to prove that she did. You and I both know how easy it is to crack a Wi-Fi password. Jennifer's condo shared a wall with another condo."

Yet Lipscomb's strategy has been successful. Since June 2011, he has filed pure bills of discovery against as many as 7,500 people. He is able to obtain names and numbers for only roughly half of them, he admits. But an average Malibu Media settlement weighs in at a hefty $7,500. At that rate, if even half of the people named end up settling, Lipscomb will have made $14 million for his clients in just 15 months.

Lipscomb says that's only a fraction of the hundreds of millions his clients lose to Internet piracy every year. He also insists his lawsuits are not so much about settlements as deterrence. Sampaio disagrees. "The whole thing from start to finish is designed to make money through litigation," she says.

Lipscomb's efforts have helped his clients recoup some of their losses, but they haven't earned him any friends online. "Someone once told me: 'Go sodomize yourself with a baseball bat,'" he says. But whereas the young attorney takes such abuse as a sign that he's doing his job, others say he's tormenting innocent Americans.

"Lipscomb really scares people with these pure bills of discovery," says the founder of website fightcopyrighttrolls.com, who declines to give his name. He concedes Lipscomb is "an extremely smart guy" but says he is notorious for letting porn companies or their hired guns — called "trolls" because they mindlessly scour the Internet — hustle people for settlements.

Several posts on the website refer to Lipscomb. Others rail against the broader practice of punishing porn downloaders. "Trolls are trying to get us for infringing on a copyright, but they are also trying to shame us. Shame us for what? After all, everyone watches porn," argues one anonymous commenter. "But what are the trolls doing?... "[They] are dirtier than we are."

The simmering anger against Lipscomb and his tactics boiled over this past July. That's when Barker filed a class-action lawsuit against five of Lipscomb's clients — including Malibu Media and Patrick Collins — claiming harassment and fraud. Lipscomb says that her suit is "frivolous" and that Henry has "no clue what he's doing."

"There is nothing unfair orunrighteous about holding a thief to account," Lipscomb says.

But Barker says she isn't a thief, and she isn't backing down. "I am standing up for my rights not to be bullied," she says. "If it is happening to me, it is happening to other innocent people. Whether it is a porn company or Disney, I won't give them money for something I didn't do."